HCCC488/2015

HCCC488/2015

A A HCCC 488/2015 B IN THE HIGH COURT OF THE B HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE C C CRIMINAL CASE NO 488 OF 2015 D ----------------- D HKSAR E E v F F CHEUK Yuet-hing G ------------------ G Before: Hon Barnes J H Date: 9 January 2017 at 2.32 pm H Present: Mr Laurence Poots, on fiat, for HKSAR I Mr Paul K N Wu, instructed by Damien Shea & Co, I for the accused Offence: (1) Trafficking in a dangerous drug (販運危險藥物) J (2) Possession of arms without a licence (無牌管有槍械) J K K --------------------------------- Transcript of the Audio Recording L of the Sentence in the above Case L --------------------------------- M M COURT: The defendant, Cheuk Yuet-hing, was charged with the N following two counts. The 1st count, trafficking in a N dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, and the 2nd count, O possession of arms without a license, contrary to section O 13 of the Firearms and Ammunition Ordinance, Chapter 238. P He pleaded guilty to both counts before me and I duly P convicted the defendant of both counts after he admitted to the Summary of Facts. Q Q Summary of Facts R R On the day in question, the police mounted an anti- narcotics operation in Sham Shui Po area and they spotted S the defendant when he was about to cross Tonkin Street. S The defendant was carrying a black messenger bag at the time. When the police went to intercept the defendant, he T suddenly dropped the bag and ran towards Castle Peak Road T area. The defendant was later intercepted and subdued by U the police who gave chase. U CRT22/9.1.2017/TW/cc 1 HCCC 488/2015(1)/Sentence V V A A The defendant was then taken to the pavement to have a body search. Nothing suspicious was found on him. The search B of the black messenger bag discarded by the defendant B revealed four resealable bags containing suspected dangerous drug. The defendant was arrested. Under C C caution, the defendant asked for a chance saying that the dangerous drug was for his own use. D D Later analysis confirmed the suspected dangerous drug to be 111.1 grammes of a solid containing 52.7 grammes of heroin E hydrochloride with a street value estimated to be $80,325. E The defendant was taken back to Cheung Sha Wan Police F Station and a further search was conducted on the said F black messenger bag. On this occasion, the police found a G stun gun or a stun device in the shape of a lighter. Under G caution, the defendant said the stun device was used by him when he was interfered with by others. The stun device was H examined and found to be capable of producing a pulsating H voltage of 138,319 volts and capable of generating 52,083 high voltage pulses in a three-second duration. I I The defendant attended two video recorded-interviews in J relation to the two counts. For the dangerous drug J offence, he maintained that he had purchased the dangerous drug for his own use, spending 40,000 for it. For the stun K device offence, he maintained that he kept the stun device K for self-defence should others intend to hit him, claiming that he had never used it. L L Background of the defendant M M The defendant is 51 years of age. His wife had passed away in 1996. He had a son who lives with his stepmother. The N defendant himself was living with his girlfriend at the N time of the offence. O The defendant is not a first offender. He has ten previous O convictions; seven of them are drug-related. Six of them are possession of dangerous drug and one of them was P P possession of equipment fit for the consumption of dangerous drug. Q Q Mr Wu, mitigating on behalf of the defendant, submitted among other things that the defendant intended to have one R of the four packets for his own consumption. A Newton R hearing was conducted to mainly determine the defendant’s claim that one of the four packets he trafficked at the S time was intended for his own consumption. I said ‘mainly’ S because, during the Newton hearing, the defendant also T claimed that the stun device was only used as a lighter and T not for self-defence as he had told the police. U U CRT22/9.1.2017/TW/cc 2 HCCC 488/2015(1)/Sentence V V A A I will first deal with the issue of whether one packet of the four packets was intended for the defendant’s self- B consumption. The defendant and his girlfriend, Tsang Mei- B chun, gave evidence for the defence. The prosecution adduced no evidence. C C In short, the defendant’s evidence was that he started D abusing dangerous drug in 1988. In 2010, he was caught D taking dangerous drug while in hospital, waiting to have his gallbladder removed and he was sentenced to a drug E addiction treatment centre. E After discharge, he refrained from taking dangerous drugs F until 2014, when the old injury he sustained at work in F 2011 was causing him pain still and he was feeling low when G his relationship with his son was not good. By that stage, G he was already living with his girlfriend, Tsang, at her flat in Laguna Verde. As Tsang was running her own beauty H business, he did not have to give her any money to support H her. I He originally worked for a company called Tak Lee Shipping I when he sustained the injury. There was a dispute between J him and his employer regarding the employee’s compensation J claim and he left the company and started to work as a lorry attendant on a casual basis. He was earning a daily K wage of $650 and an extra 200 if there was overtime. On K average, he earned approximately $15,000 to $16,000 per month in year 2015. L L Regarding the dangerous drug found inside his bag, he said M he had phoned his usual supplier, someone called Ah Hing, M to ask for another supply of about $8,000 worth of heroin. Ah Hing told him that he had four packets, one of which N could be for the defendant. As the quantity is larger, Ah N Hing told him that he would be charged 15,000 for one packet. Ah Hing also told him that he, that is Ah Hing, O was moving house and had to go to the mainland for a few O days. Ah Hing asked the defendant to do him a favour, to P keep the three packets for him until he returned from the P mainland. The defendant agreed. Hence, one of the four packets was intended for his own use. Q Q The defendant was arrested by the police with these four packets. As he knew that keeping three packets for another R person still amounts to trafficking in dangerous drugs, he R lied to the police during the video-recorded interview and said all four packets were for his own consumption and that S S he paid 40,000 for them. T As to how he managed to pay for the $15,000, he said, T originally, he intended to buy the drugs for $8,000. On the day in question before meeting Ah Hing, he asked Tsang U U CRT22/9.1.2017/TW/cc 3 HCCC 488/2015(1)/Sentence V V A A for the rest of the money, without telling her what the money was for, that is $7,000. B B Tsang gave evidence supporting the defendant’s version. She admitted running a beauty business at the premises in C C Laguna Verde and earned about $50,000 to $60,000 per month with her customers paying her cash. The defendant did not D make any financial contribution to the household, save to D buy things sometimes. E On 29 May 2015, when she was in the bathroom, the defendant E said to her he would take $7,000 from her handbag without telling her for what purpose. But Tsang thought the F defendant needed the money in relation to his own family, F that is the son who was living with the defendant’s G stepmother. To avoid embarrassment, Tsang did not raise G any question. Tsang recalled having around $12,000 in her handbag and the defendant took 7,000. H H According to the chemist certificate which was in the bundle, the four packets contained respectively 12.9, 13.3, I 13.3 and 13.2 grammes of heroin. I Now as to the stun device, the defendant said he bought it J J from a shop as he liked the design. He used it as a lighter. He told the police, under caution, he intended to K use the stun device for self-defence, which was not true. K He said he was asked by the police whether the stun device was to be used for self-defence. Thinking that there would L be no problem to say it was for his own self-defence, he L said that was the case. M M After considering all the evidence before me, I find that the defendant satisfied me on a balance of probabilities N that one of the four packets was intended to be for his own N consumption. What the defendant had said had a ring of truth about it and his evidence was supported to a great O extent by Tsang’s evidence. I therefore accept that 25 per O cent of the total amount of heroin found was intended for his own consumption. P P I am, however, unable to accept his explanation why he had Q told the police, under caution, that the stun device was Q intended for self-defence. It defies logic if the true purpose of the device was only to be used as a lighter, and R yet he told the police it was for self-defence. To be in R line with his attempt to minimise his culpability in relation to the dangerous drug, he would have told the S S police that he was only using the device as a lighter. I therefore reject this part of his evidence. T T As the prosecution confirmed that the device could indeed be used as a lighter as well, I find that the defendant was U in possession of the stun device for a dual purpose; that U CRT22/9.1.2017/TW/cc 4 HCCC 488/2015(1)/Sentence V V A A is, to be used as a lighter and to use it in self-defence should he encounter anyone trying to harm him. I accept B there is no evidence that he had ever used it. B Now, in mitigation, Mr Wu asked me to consider giving the C C defendant the full one-third discount for his plea, and in relation to the dangerous drug offence, to give the D defendant a further discount for part of the dangerous drug D being intended for his own consumption. That is in relation to the starting point. In relation to the stun E device, Mr Wu asked me to take into account that there is E no evidence that the defendant was in possession of the device for any illegal purpose. He also asked me to F F consider the totality of the two sentences, to make adjustment accordingly. G G The Sentence H Trafficking in a dangerous drug is a serious offence. A H person convicted of this offence, on indictment, is liable to be fined $5 million and to imprisonment for life. The I Court of Appeal, in the case of Lau Tak Ming [1990] 2 HKLR I 370, set down guidelines for sentencing traffickers J trafficking heroin hydrochloride. The amount involved here J is 52.7 grammes. For an amount between 50 to 200 grammes, the appropriate starting point is between 8 to 12 years. K K Where part of the dangerous drug is for self-consumption, the appropriate starting point will have to be adjusted, L see HKSAR v Wong Suet Hau [2002] 1 HKLRD 69. As to the L percentage to be given, one should see the case of HKSAR v M Chow Chun Sang [2012] 2 HKLRD 1116. In other words, 10 to M 25 per cent when a significant part, or all, of the dangerous drugs was for self-consumption. N N After considering the circumstances of the offence, I am of the view that a starting point of 8 years is appropriate O for the total amount of 52.7 grammes of heroin. I will O adjust the starting point by giving the defendant a discount of 12 months, which amounts to about 12.5 per P P cent, to take into account that 25 per cent of the drugs was for his own consumption. The starting point is Q therefore 84 months. The defendant will be given a full Q one-third discount. R The sentence for the trafficking in a dangerous drug, the R 1st count, is therefore 56 months which equals to 4 years and 8 months’ imprisonment. S S A person convicted of an offence of possession of arms T without a licence, on indictment, is liable to a fine of T $100,000 and imprisonment for 14 years. U U CRT22/9.1.2017/TW/cc 5 HCCC 488/2015(1)/Sentence V V A A According to the statement of Dr Wong Hon-man, the kind of stunning devices, of which the present one was one, was B designed to produce an audible and visible deterrent display B of sparks when operated in the open air and to administer a shock sufficient to cause temporary incapacitation when C C applied to the human body. D In the case of The Queen v Wong Chuen Pong - I do not think D it is reported - CACC 579/1996, 2 years’ imprisonment after plea was imposed on the defendant for possession of a stun E device with a discharge of 60,000 volts. E Bearing in mind there is no evidence that the defendant was F F in possession of the stun device to commit any criminal offence, I am of the view that a starting point of 2 years G is appropriate for this offence. G The defendant is entitled to a one-third discount for his H early plea, even though, during the Newton hearing, I did H not accept his explanation as to the self-defence part - because that part did not really occupy much of the actual I I Newton hearing itself. So with the one-third discount, the sentence for this offence is one of 16 months. J J Taking into account the totality principle, I am satisfied that 8 months of this sentence should run consecutively to K the sentence imposed for the trafficking in a dangerous K drug offence. L So the actual sentence for the 1st count, trafficking in a L dangerous drug, 4 years and 8 months’ imprisonment. The M 2nd count, possession of arms without a license, 16 months’ M imprisonment. Eight months of the 2nd count to run consecutively to the 1st count, 4 years and 8 months, N making a total of 5 years and 4 months’ imprisonment. N O O P P I/we certify that to the best of our ability and Q skill, the foregoing is a true transcript of the Q audio recording of the above proceedings R R S S .......................................... T Tolaigus Wan T Date: 18 January 2017 U U CRT22/9.1.2017/TW/cc 6 HCCC 488/2015(1)/Sentence V V